THE JUDGMENT OF THE PRIMARY JUDGE
29 Mr Eden's sole ground for reviewing the Minister's cancellation decision was that there was a jurisdictional error resulting from the unreasonable exercise of the Minister's discretion.
30 It would appear that the primary judge was aware of the constraints of this ground of judicial review. His Honour referred (at Judgment [9]) to two "overarching principles" applicable to the judicial review of discretionary powers. The first principle was that, in considering such a ground, the Court is concerned with the legality of the decision under review, not its merits. His Honour cited, in relation to that principle, the well-known decisions in Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 and Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24. The second principle was that where reasons for the decision are given, those reasons must never be read critically with an eye for error. His Honour cited, in relation to that principle, the equally well-known decision in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
31 Later (at Judgment [33]), the primary judge also referred to the observation of Gageler J in Li at [113] concerning the stringency of the test for, and rarity of judicial determination of, unreasonableness of the type referred to by Lord Greene in Associated Provincial Picture Houses, Limited v Wednesbury Corporation [1948] 1 KB 223 (Wednesbury). The test for so-called Wednesbury unreasonableness is that the decision is so unreasonable that no decision-maker could have made it. His Honour noted, however, that it was made clear in Li that the boundaries of legal unreasonableness are not defined by, or confined to, Wednesbury unreasonableness.
32 Despite the constraints of, and the strictness of the test for, judicial review on the basis of unreasonableness, the primary judge found that Mr Eden had made good his case that the Minister's decision was unreasonable. The basis of that conclusion was summarised in the following terms in the penultimate paragraph (Judgment [34]) of his Honour's judgment:
In this particular case, when one has regard to the objective seriousness of the offence, to the delay and to the competing considerations (highlighted above), one of which the Minister regarded as primary, I am driven to the conclusion that the outcome is unreasonable on just the basis described in the joint judgment in Li. I reach that conclusion without exploring proportionality in any way as a replacement for unreasonableness as explained in the joint judgment. Another way, though, of describing the outcome is to adopt the same language that commended itself to French CJ in Li. The Minister has, with respect, taken a sledgehammer to crack a nut.
33 Three points should be noted in relation to the primary judge's conclusion that the "outcome" of the Minister's decision was unreasonable.
34 The first point is that his Honour's reference to the "basis described in the joint judgment in Li" would appear to be a reference to 367[76] of the judgment of Hayne, Kiefel and Bell JJ in Li, which was extracted earlier in his Honour's judgment, in which their Honours state:
As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification. (footnotes omitted)
35 Thus, it would appear that one basis for the primary judge's conclusion would appear to have been that the outcome of the Minister's decision, the cancellation of Mr Eden's visa, was "unreasonable or plainly unjust" or lacked an "evident and intelligible justification".
36 The second point is that the primary judge's adoption of the expression "sledgehammer to crack a nut" was taken from the judgment of French CJ in Li at [30], which includes the following statement of principle:
A distinction may arguably be drawn between rationality and reasonableness on the basis that not every rational decision is reasonable. It is not necessary for present purposes to undertake a general consideration of that distinction which might be thought to invite a kind of proportionality analysis to bridge a propounded gap between the two concepts. Be that as it may, a disproportionate exercise of an administrative discretion, taking a sledgehammer to crack a nut, may be characterised as irrational and also as unreasonable simply on the basis that it exceeds what, on any view, is necessary for the purpose it serves. That approach is an application of the principles discussed above and within the limitations they would impose on curial review of administrative discretions. (footnotes omitted)
37 Thus, it would appear that another basis for the primary judge's conclusion that the Minister's decision was unreasonable was that, in his Honour's view, the cancellation of Mr Eden's visa was a disproportionate exercise of the Minister's discretion, in the sense that it exceeded what, on any view, was necessary for the purposes it served.
38 The third point that is revealed by the primary judge's conclusion (at Judgment [34]) is that there were three particular matters that led his Honour to find that the Minister's decision was unreasonable on the basis that it was "unreasonable or plainly unjust" or a disproportionate exercise of the cancellation power. Those matters were: first, the objective seriousness of the offence; second, delay; and third, the "competing considerations".
39 In relation to the first of these matters, the objective seriousness of Mr Eden's offence, the primary judge concluded, in short, that "[o]bjectively, and it is necessary to emphasise that, this was not a very serious offence" (Judgment at [18]). His Honour emphasised the word "objectively", it seems, to contrast this conclusion from what his Honour characterised as the Minister's "subjective view" (see Judgment at [13]) concerning the seriousness of the offence. The primary judge appears also to have formed the view that, in reaching this subjective view, the Minister was effectively misled by the author of the submission and issues paper who did not "observe objective and dispassionate detachment" (see Judgment at [13]).
40 The primary judge's conclusion that Mr Eden's offence was not objectively very serious appears to have been based on two matters: first, "the conduct itself" (which may be taken to mean Mr Eden's conduct); and second, "the approach to that conduct" by the sentencing judge (see Judgment at [14]). As for "the conduct itself", it is not entirely clear what aspect of Mr Eden's conduct led the primary judge to conclude that the offence was not very serious. It would appear, however, that his Honour gave considerable weight to the sentencing judge's finding that the video footage of the offending exchange between Mr Eden and the victim was "equivocal" and that Mr Eden had "probably" misinterpreted the victim's actions (Judgment at [17]). Elsewhere in the judgment, however, his Honour noted that there was a "heinous" quality to Mr Eden's conduct (Judgment at [1] and [17]).
41 As for the approach of the sentencing judge, his Honour concluded that the sentence imposed was "eloquent" in demonstrating that Mr Eden's offence was not very serious (see Judgment at [18]). His Honour was probably referring here to the fact that Mr Eden's sentence of imprisonment was wholly suspended.
42 In relation to the second matter that founded the finding of unreasonableness, delay, the primary judge's findings and reasoning is spelt out in unequivocal terms (at Judgment [29]):
Delay, if it is lengthy, in the circumstances of a particular case, has in the United Kingdom been regarded as a basis upon which a ministerial decision can be regarded as unreasonable. Thus in The Queen v Secretary of State for the Home Department ex parte Handscombe (1987) 86 Cr. App. R. 59 [sic] and in Doody v Secretary of State for the Home Department [1994] 1 AC 531 in Lord Mustill's view, a lengthy delay before the Home Secretary's review of a life prisoner's sentence was held to be unreasonable and "excessive beyond belief". Here, for the entirety of the period during Mr Eden's suspension of sentence, he received not a hint from any officer of the Commonwealth that the Minister was even likely to consider his case as one for visa cancellation and deportation. The period is even longer if one has regard to the time which elapsed after the offending conduct. Even after the District Court outcome was finally, for reasons that were not stated, drawn to the department's attention by the Australian Federal Police, no particular urgency attended the sequel to the provision of that information. Over all of that time, a family relationship with a young child was developing. Lethargy on the part of the Minister and her officers and other officers of the Commonwealth, who, inferentially, were charged with drawing court outcomes to the department's attention, allowed that to occur. That, in itself, may well be a factor which warrants a conclusion that this particular outcome was oppressive and unreasonable.
43 It will be necessary to say something later about his Honour's reliance on the English decisions in the R v Secretary of State for the Home Department, ex parte Handscomb (1988) 86 Cr. App. R. 59 (Handscomb) and R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531 (Doody). Suffice it to say at this stage that the observations concerning delay in those cases were made in an entirely different statutory and legal context to this matter.
44 The third matter referred to by the primary judge (Judgment at [34]) as supporting the conclusion that the outcome was unreasonable, the "competing considerations", was a reference to Mr Eden's personal circumstances and the hardship that he and his family would suffer if Mr Eden's visa was cancelled. The primary judge summarised those considerations as follows (at Judgment [22]-[23]):
The Minister also found that Mr Eden provided the sole means by which support was given to his wife and their child. She further found that Mr Eden was committed to being a positive and supportive role model for his son. Unsurprisingly, the Minister also found that deportation would cause not just emotional but also financial distress to the child and that it would disrupt the relationship between father and son. The Minister further found, and indeed classed it as a primary consideration, that it was in the best interests of that child for Mr Eden to remain in Australia and for her not to cancel his visa.
Other findings made by the Minister in her reasons were that, during Mr Eden's over seven year period of residence in Australia (he first arrived in 2007), he had been actively employed and contributed to the Australian community by paying taxes. She further found that, over that time, Mr Eden had developed, both through family, business, property ownership and payment of taxes, ties to the Australian community. The Minister had before her, and did not gainsay, a character reference which attested to Mr Eden's being a dedicated and loving family man who had a good work ethic. She accepted that deportation would necessarily terminate Mr Eden's income-earning business in Australia.
45 It is to be noted that the primary judge did not expressly find that the Minister failed to give sufficient weight to the competing considerations. On one view, however, that would appear to be implicit in his Honour's conclusion that the cancellation outcome was unreasonable.